Land and Environment Court of New South Wales CITATION : NSI Group Ltd v Parramatta City Council [2002] NSWLEC 76 APPLICANT: NSI Group Limited PARTIES : RESPONDENT: Parramatta City Council FILE NUMBER(S) : 11065 of 2001 CORAM: Lloyd J Question of Law :- preliminary question of law - statutory interpretation KEY ISSUES: Costs:- planning appeal - separate determination of preliminary question of law Environmental Planning and Assessment Act 1979 s 97 and s 70(4) Land and Environment Court Act 1979 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6, r 1(i) Supreme Court Rules 1970 Pt 31, r 2(a) Parramatta Local Environmental Plan 2001 cl 5(2) and cl 40(1) Parramatta Local Environmental Plan 1990 (Toongabbie Ward) CSR Ltd v Fairfield City Council [2001] NSWLEC 221; Gibson v Mosman Municipal Council [2001] NSWLEC 201; CASES CITED: Ginahgulla Pty Ltd v Little (1982) 3 BPR 9256; Louinder v Stuckey [1984] 2 NSWLR 354; MLC Properties v Camden Council (1997) 96 LGERA 52; Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365 DATES OF HEARING: 06/05/2002 DATE OF JUDGMENT: 05/17/2002 APPLICANT: Mr J J Bingham (solicitor) SOLICITORS: Deacons LEGAL REPRESENTATIVES: RESPONDENT: Mr P C Tomasetti (barrister) SOLICITORS: Storey & Gough JUDGMENT: 10 IN THE LAND AND Matter No.: 11065 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 17 May 2002 NSI Group Pty Limited Applicant v Parramatta City Council Respondent REASONS FOR JUDGMENT 1. This is the separate determination of a number of questions of law prior to the hearing on merits of an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the deemed refusal of a development application for residential flat building. (The separate determination of questions is permitted by the Supreme Court Rules 1970, Pt 31, r 2(a) as they apply in this Court – see the Land and Environment Court Rules 1996, Pt 6, r 1(i)). 2. It is convenient to consider severally the various questions for determination raised by the applicant. Does clause 40(1) of the Parramatta Environmental Plan 2001 apply to the development application? 3. The development application was made by the applicant after the commencement of Parramatta Local Environmental Plan 2001 ("the 2001 LEP"). Clause 40(1) of the 2001 LEP provides a floor space ratio control which varies according to the type of development which is proposed. 4. Mr J J Bingham, appearing for the applicant, submits that this clause does not apply to the proposed development for the reason that the subject site is marked "deferred area" on the relevant zoning map to the 2001 LEP, to which cl 5(2) of that instrument applies. Clause 5 is relevantly as follows: 5 How does this plan affect other plans? (1) This plan repeals the following environmental planning instruments: … (b) Parramatta Local Environmental Plan 1990 (Toongabbie Ward), … except as provided by subclause (2). (2) This plan does not affect the application of Parramatta Planning Scheme Ordinance, Parramatta Local Environmental Plan 1990 (Toongabbie Ward) and Parramatta Local Environmental Plan 1993 (Dundas Ward) (and any other environmental planning instrument amending those plans) to any land shown edged heavy red and marked "deferred area" on the zoning map. … 5. The subject site was until the commencement of the 2001 LEP subject to the provisions of Parramatta Local Environmental Plan 1990 (Toongabbie Ward) (which I shall call "the 1990 LEP"). Under the 1990 LEP there are no floor space ratio controls. It seems to be common ground that the floor space ratio of the proposed development exceeds those which are prescribed by cl 40(1) of the 2001 LEP. 6. According to Mr Bingham's submission, as I understand it, every environmental planning instrument identifies the land to which it applies. In making a local environmental plan, the Minister has the power to exclude certain provisions of the draft plan, or to exclude part of the land from the draft plan, or both, which in his or her opinion require or requires further consideration but which should not prejudice the making of the local environmental plan (s 70(4), EP&A Act ). Put in another way, in Mr Bingham's submission the 2001 LEP applies to the Parramatta local government area except that part of it which has been excluded by the Minister under s 70(4). Mr Bingham submits that in the present case the land marked "deferred area" on the zoning map is excluded by the Minister from the 2001 LEP and the 1990 LEP continues to apply thereto (cl 52)). It follows, in his submission, that the 2001 LEP has no application to the subject site and the only relevant controls are those that are found in the 1990 LEP. 7. Mr Bingham claims support for this submission from a letter written by the Minister to Mr E Semaan, a director of the applicant. That letter states (inter alia): Higher density development near railway stations is a matter of regional significance which is consistent also with the principles of Parramatta City Council's residential Development Strategy. For these reasons, I decided to support a request by the Council that the site of your proposal be deferred from the final plan. The site at 2 Wenthworth Avenue therefore retains its zoning under the previous LEP and Council can proceed to consider and determine the application accordingly. 8. Mr Bingham also relies upon a more recent letter written by the respondent to the applicant's town planning consultant, Mr A Caladine, which states inter alia: Council resolved on 21 May 2001, to defer properties within the proposed Residential 2(e) zone, under the then draft Parramatta LEP 2000, within a 400m radius of Toongabbie Station, to further investigate the flood status of those affected properties and the potential for increasing residential densities. 9. In Mr Binghan's submission, the Court should have regard to the purpose of cl 5(2) as described by these letters. That purpose was to defer the zoning "to investigate … the potential for increasing residential densities". The application of the floor space ratio in cl 40 of the 2001 LEP is inconsistent with this purpose. 10. In the course of the hearing I drew the parties' attention of the parties to the fact that sub-cl 5(2) of the 2001 LEP only applies to land that satisfies two criteria, namely, any land (1) "shown edged heavy red" and (2) "marked 'deferred area' on the zoning map". In the present case the extract of the zoning map admitted into evidence shows the subject land as marked "deferred area" but does not show it edged in heavy red. It seemed to me that the subject land satisfies only one of the two criteria specified in cl 5(2). After the conclusion of the hearing, however, the parties notified me by letter that they have agreed that a certified copy of the relevant zoning map shows the subject land as satisfying both criteria. 11. In Mr Bingham's submission, if the controls in cl 40(1) of the 2001 LEP were to apply in addition to the 1990 LEP, this would "affect the application" of the 1990 LEP on the proposed development. The controls under the 1990 LEP cannot be supplemented without "affecting the application" of that plan within the meaning of cl 5(2) of the 2001 LEP. 12. Mr P C Tomasetti, appearing for the respondent council, submits that both instruments apply to the subject land in this case. According to cl 4 of the 2001 LEP, the plan applies to "such of the land within the City of Parramatta as is shown on the zoning map". The subject land is shown on the zoning map and is within the City of Parramatta. Clause 4 does not require that the land be shown on the zoning map within any particular zone. 13. In Mr Tomasetti's submission, even though the subject land is marked "deferred area" and is uncoloured in the zoning map, the fact that it is unzoned under the 2001 LEP does not mean that both instruments cannot apply. Since the subject land is unzoned, Pt 2 of the 2001 LEP, that sets out the controls for zoned land, does not apply. Instead, the zoning of the land under the 1990 LEP continues to apply. Nevertheless Pt 3 and Pt 4 of the 2001 LEP, which include general clauses such as cl 40(1) which applies to all residential development, apply to all land to which the 2001 LEP applies. Mr Tomasetti submits that the 1990 LEP contains no controls or development standards other than to zone the land and to set out a table of permitted or prohibited uses. There is, accordingly, no apparent inconsistency in the application of both instruments to the subject land. In particular, cl 5(2) of the 2001 LEP does not say that the 2001 LEP does not apply to a "deferred area". 14. In considering these submissions the overriding principle is that one must look at the language of the provision and if the natural meaning is clear and plain, and, unless the ordinary sense of the provision would lead to some manifest inconvenience, some manifest contradiction of the apparent purpose, absurdity, hardship, repugnance or inconsistency with the rest of the instrument, then the ordinary and natural meaning must apply. It seems to me that the resolution of the question can be resolved by simply applying the plain words of cl 5(2) of the 2001 LEP: "This plan does not affect the application of…[the 1990 LEP]…". In other words, if the application of the 1990 LEP is affected by the application of the 2001 LEP then the latter does not apply to the extent of any such affectation. If the provision is clear and unambiguous, it is its own expositor (Lukey v Edmunds (1916) 21 CLR 336). 15. Contrary to the submission of Mr Tomasetti, the 1990 LEP does more than simply zone land and set out what development is permitted or prohibited in the zoning table. Clause 2 of the 1990 LEP states: 2. The aims of this plan are: (a) to consolidate and update planning controls applying to the Toongabbie Ward; and (b) to enable the Parramatta City Council to prepare development controls plans to address in more detail particular aspects of the development of particular sites. 16. The council has adopted a development control plan for land covered by the 1990 LEP. That development control plan ("the DCP") contains the controls for such matters as building heights and residential densities. The DCP in turn refers to the council's code for residential flat buildings. 17. It is self-evident that the controls contained in cl 40(1) of the 2001 LEP would affect the height and density controls set out in the DCP to which I have referred and affect the controls set out in the council's code for residential flat building referred to therein. The DCP was made to give effect to cl 2(b) of the 1990 LEP. It follows that cl 40(1) of the 2001 LEP affects the application of the 1990 LEP and so cannot apply to the subject land being a "deferred area" described in cl 5(2). The 1990 LEP and the DCP referred to in cl 2(b) thereof and the council's code for residential flat buildings continue to apply to the subject land. 18. This conclusion is confirmed by the correspondence upon which Mr Bingham relies (noted in pars [7] and [8] above). Recourse may be had to such correspondence to confirm that the meaning of cl 5(2) is the ordinary meaning conveyed by the text of that provision (Interpretation Act 1987, s 34(1)(a)) 19. I conclude, therefore, that cl 40(1) of the 2001 LEP does not apply to the proposed development in the present case. In the alternative to question 1, does the proposed development the subject of these proceedings fall within the definition of high density housing in Parramatta Local Environmental Plan 2001? 20. Although in the light of the above-mentioned finding it is not necessary to answer this question, I note that the parties have agreed that this question should be answered in the affirmative. In the alternative to question 1, is the maximum floor space ratio prescribed by cl 40(1) of Parramatta Local Environmental Plan 2001 for the proposed development the subject of these proceedings 1.5:1? 21. Again, although it is not necessary to answer this question, I note that the parties have agreed that this question should be answered in the affirmative. In the alternative to question 1, does the term "underground parking" for the purposes of the definition of "floor space area of the building" under Parramatta Local Environmental Plan 2001, mean parking that is substantially but not necessarily completely underground? 22. I have found that the proposed development is not subject to cl 40(1) of the 2001 LEP, which provides that a building must not exceed the floor space ratio indicated in the table to that sub-clause. Accordingly this question need not be answered. In view of the fact, however, that the question was debated, it may be of assistance to the parties to indicate my views. 23. The dictionary to the 2001 LEP defines "floor space ratio, in relation to a building" as "the ratio of the floor space area of the building to the area of the allotment on which the building is or is proposed to be erected". The reference in this definition to the "floor space area of the building" in turn requires recourse to the definition of that phrase in the dictionary to the LEP 2001, which is as follows: floor space area of a building means the sum of the gross horizontal areas of each floor of the building contained within the inner faces of the outer walls measured at a height of 1.5 metres above the floor, including the space occupied by internal walls, staircases, lobbies, corridors and toilets, but not including: … (b) any space permanently set aside within the building for underground parking, other than spaces used for public car parking which is more than 1 metre above natural ground level, and for the unloading or loading of vehicles, including ramps or other means of access to it, or… 24. Mr Bingham adduced evidence which shows that the ceiling level of the proposed parking level shown in the basement plans is between 0.2 metres below and 1.3 metres above the natural ground level as identified by survey. The floor level of the parking level is between 2.8 metres below and 1.3 metres below the natural ground level identified by the survey. The floor to ceiling height in the parking level is 2.6 metres. 25. The facts do not enable me, however, to determine whether the greater part of the ceiling level of the proposed parking level shown on the basement plans is above or below natural level. 26. In Mr Bingham's submission the term "underground parking" must include in its context spaces which are partially above ground, otherwise there would be no need to provide the exception for public car parking spaces which are more than 1 metre above natural ground level. In his submission the term "underground" in reference to parking includes parking levels which are substantially underground. 27. Mr Tomasetti submits that this is a question of fact to be determined by the person who hears the appeal. 28. The phrase "underground parking" is not defined in the 2001 LEP. Accordingly that phrase should be construed according to its ordinary meaning (Louinder v Stuckey [1984] 2 NSWLR 354). 29. In Ginahgulla Pty Ltd v Little (1982) 3 BPR 9256, a case which involved the interpretation of a restrictive covenant, Waddell J held that the word "basement" was a storey of a building partly or wholly underground, so that where the greater part of the lower floor of a house was partly underground, it must be regarded as a basement. 30. The term "underground parking", it seems to me, is in pari materia to "basement". In MLC Properties v Camden Council (1997) 96 LGERA 52, I held that the word "basement" as used in an environmental planning instrument must be given its ordinary meaning and I accepted the meaning adopted by Waddell J in Ginahgulla. I held that where the greater part of the lower level of a building was underground it was reasonably open for the consent authority to conclude that it was a basement. 31. This question is, however, one of fact that is to be determined by the consent authority. Whether it is reasonably open for the consent authority to conclude that the parking level in the present case is underground parking must in turn depend upon the particular facts. As noted above I am not in possession of all the facts that would enable me to make that determination. Accordingly I declined to give a determinative answer to this question, because it necessarily depends upon the particular facts of the case. Whether issue 3, 4 and 5 of the Statement of Issues filed by the council should be struck out. 32. Issue 3 is as follows: Whether the application can be approved having regard to the FSR [floor space ratio] provisions of Clause 40 of Parramatta Local Environmental Plan 2001 as a SEPP1 [State Environmental Policy No. 1] Objection has not been submitted. 33. Having regard to my answer to the first question raised, cl 40 of the 2001 LEP does not apply to the proposed development and this issue should be struck out. 34. Issue 4 is as follows: Whether the SEPP1 Objection should be upheld in respect of the FSR variation. 35. As a consequence of the striking out of issue 3, this issue should also be struck out. 36. Issue 5 is as follows: Whether the proposed development achieves the energy efficiency requirements of DCP 2001 and whether an "Energy Performance Statement" and "Nathers Report" should be submitted. 37. The DCP 2001 is an instrument which was made pursuant to and to give effect to the 2001 LEP. In view of my finding on the first question, it is apparent that the controls which apply under the 2001 LEP and the associated DCP are not relevant. This issue should be struck out. Costs 38. The parties agree that the settled practice of the Court is that the separate determination of a preliminary question of law in a planning appeal does not ordinarily attract an order for costs, unless the circumstances are exceptional. The parties accept that this is because in the exercise of its discretion as to costs in planning appeals, it is the long-standing general practice of the Court not to make orders for costs unless the circumstances are exceptional. 39. The reason behind the practice is based on a philosophy of encouraging parties to seek review of planning decision rather than discouraging them by burdening them with the risk of an adverse order for costs if unsuccessful. If an order were made for costs in the hearing of the separate determination of preliminary questions of law then this objective would be defeated (Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365, Pearlman J, CSR Ltd v Fairfield City Council [2001] NSWLEC 221, Pearlman J) 40. However, in Gibson v Mosman Municipal Council [2001] NSWLEC 201, Talbot J made an order for the costs of the separate determination of a preliminary question of law in a planning appeal. In that case, however, as appears from the judgment of Talbot J, the question raised was "the issue of jurisdiction of the Court to determine a vital issue in the appeal". The questions raised in the present case, however, do not concern the jurisdiction of the Court, but rather whether a particular environmental planning instrument applies to a proposed development and whether the proposed development is prohibited by such environmental planning instrument. That is the kind of question which is clearly within the jurisdiction of the Court to determine. 41. There will, accordingly, be no order as to costs. Conclusion 42. For the purpose of these proceedings it is sufficient that I make the following declaration and orders. 1. A declaration that clause 40(1) of Parramatta Local Environmental Plan 2001 has no application to the proposed development that is the subject of these proceedings. 2. An order that pars [3], [4] and [5] of the Statement of Issues filed on 25 February 2002 by the respondent council be struck out. 3. No order as to costs. 4. Exhibits may be returned. I hereby certify that the preceding 42 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd Associate Dated: 17 May 2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.